Yesterday, the United States Supreme Court heard oral arguments in Giles v. California, the case raising the issue of whether the forfeiture by wrongdoing doctrine extends to cases where a party (usually the defendant) caused a prospective witness to be unavailable for trial but did not specifically intend to render the prospective witness unavailable (for example, it's tough to argue that a man who allegedly killed his ex-girlfriend had the specific intent of rendering her unavailable for his subsequent trial for murdering her). So, how did things go? Will, it looks to me like a mixed bag. Chief Justice Roberts seemed somewhat skeptical of the argument of Giles' counsel for a more limited application of the forfeiture by wrongdoing doctrine, noting that under this reading of the doctrine, a murderer "gets a great benefit from murdering her. . . . Her testimony is not available. We usually, under our system, don't try to give benefits for murderers." On the other hand, Justice Kennedy challenged the state's argument that specific intent is not required. Kennedy responded to the state's argument by saying, "I think it's an astonishingly broad exception you're asking for." According to Kennedy, it would allow the kind of secondhand "hearsay" testimony the court had barred in the 2004 ruling in Crawford v. Washington, 541 U.S. 36 (2004).

Richard Friedman, who attended the oral arguments, has some great posts about what transpired. And according to him, Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent. This leads me to repeat my argument that this position is nonsensical. In other words, even if we apply a version of the forfeiture by wrongdoing doctrine that does not contain a specific intent requirement, the doctrine would not swallow up the dying declaration exception, as some judges have contended. Why?

Well, let's say that a man allegedly murders his ex-girlfriend and her family subsequently sues him for wrongful death. At trial, the plaintiffs' attorney seeks call an EMT to testify that he came upon the victim and informed her that her death was imminent, whereupon she told him that her ex-boyfriend shot her. And let's say that the other evidence in the case does not yet support a finding that the defendant killed the victim. Here, even under the version of the forfeiture by wrongdoing doctrine not requiring specific intent, the victim's statements will not be admissible against the defendant because it has not been established by a preponderance of the evidence that the defendant killed the victim and caused her unavailability. However, the victim's statement would almost certainly qualify as a dying declaration under Federal Rule of Evidence 804(b)(2) and state counterparts because it would be a statement by the declarant about the cause or circumstances of her impending death while she believed her death was imminent.

As I've previously stated, I support a reading of the forfeiture by wrongdoing doctrine which does not contain a specific intent requirement, but I can certainly see the opposing argument, so I won't be upset if the Supreme Court goes in the other other direction. But I will be upset if they base it upon the argument that a version of the forfeiture by wrongdoing doctrine that does not contain a specific intent requirement swallows up the dying declaration exception because that conclusion doesn't hold water.